is protected against interference by public authorities as well as by individuals or
private institutions, including the media. 42
50.
In this context, the Court must find a balance between private life and freedom
of expression that, not being absolute, are two fundamental rights guaranteed by the
American Convention and of great importance in a democratic society. The Court
recalls that every fundamental right is to be exercised with regard for other
fundamental rights. This is a process of harmonization in which the State has a key
role in trying to determine responsibilities and impose sanctions as may be necessary
to achieve such purpose. 43 The need to protect the rights that may be affected due to
an abuse of freedom of expression requires the proper observance of the limits
established in this regard by the Convention itself. 44
2. The restriction to the right of freedom of expression and the application of
further liability in this case
51.
Given these considerations and the claims of the parties, the Court will consider
if the measure of further liability imposed, namely, the civil penalty applied in this case
met the above requirements that are said to be provided for in the law, pursue a
legitimate end, and are appropriate, necessary, and proportionate. In this regard,
while the Ruling refers to two domestic judgments related to this case (supra paras. 38
and 39), the analysis revolves around, mainly, the decision of the Supreme Court that
finalized the civil sentence and ruled definitively on the claim of the alleged victims.
Legality of the measure
52.
The right to privacy for which the alleged victims were civilly liable under Article
1071 bis of the Civil Code, is a law in the formal and material sense. As for the
allegation that the challenged regulation does not meet the requisite of a substantive
law (supra para. 23), the Court finds that although it is a provision that, indeed, has
been drafted in general terms, it is not enough to deprive it of its nature as a
substantive law (infra paras. 89 to 92).
Legitimate end and appropriateness of the measure
53.
The Court has held that public officials, like everyone else, are covered by the
protection afforded by Article 11 of the Convention, which recognizes, inter alia, the
right to private life. Article 13(2)(a) of the Convention sets forth that “the respect of
the rights […] of others” may be the grounds for establishing subsequent liability in
the exercise of the freedom of thought and expression. Consequently, the protection
of privacy life of any person is a legitimate purpose consistent with the Convention.
Also, the civil forum is appropriate because it serves to safeguard, through actions for
damages, the legal right to be protected, that is, it is able to help achieve this goal. 45
42
Similarly, Cf. TEDH, Case of Von Hannover v. Germany, Judgment of June 24, 2004, para. 57, and
Resolution 1165 of the Council of Europe Parliamentary Assembly on the right to privacy of June 26, 1998,
article 12.
43
Cf. Case of Kimel V. Argentina, supra note 38, para. 75.
44
Cf. Case of Kimel V. Argentina, supra note 38, para. 56.
45
Cf. mutatis mutandi, Case of Kimel V. Argentina, supra note 38, para. 71, and Case of Tristán
Donoso V. Panamá, supra note 35, para. 118.
19